Dibley v Sydney West Area Health Service

[2009] NSWSC 856

CITATION:	Dibley v Sydney West Area Health Service [2009] NSWSC 856
HEARING DATE(S):	25/06/09, 07/08/09
JUDGMENT DATE :	27 August 2009
JUDGMENT OF:	James J
DECISION:	1. The limitation period applicable to the cause of action pleaded in the statement of claim is extended up until 31 March 2008. 2. The plaintiff is to pay the defendant’s costs of the application but the costs order is not to be enforced prior to final judgment in the action without the leave of the Supreme Court.
CATCHWORDS:	Limitation period — application for an extension — whether plaintiff aware of connection between injury and omissions of defendant — costs
LEGISLATION CITED:	Limitation Act
CASES CITED:	Cartledge v E Jopling & Sons Limited [1963] 1 All ER 341 Commonwealth v Lewis [2007] NSWCA 127 Dedousis v The Water Board (1993-1994) 181 CLR 171 Drayton Coal Pty Ltd v Drain (1995) NSWCA 131 Footner v Broken Hill Associated Smelters Pty Limited (1983) 33 SASR 58 Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260 Holt v Wynter (2000) 49 NSWLR 128 Nixon v Philip Morris (Australia) Limited (1999) 165 ALR 515 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Williams v Commonwealth of Australia [2007] NSWSC 1342
PARTIES:	Renee Roslyn Dibley Sydney West Area Health Service
FILE NUMBER(S):	SC 20104/08
COUNSEL:	J A Anderson - Plaintiff S G Barnes - Defendant
SOLICITORS:	McLaughlin & Riordan Solicitors - Plaintiff General Insurance Law Department - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 27 AUGUST 2009

20104/08 RENEE ROSLYN DIBLEY v SYDNEY WEST AREA HEALTH SERVICE

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff Renee Roslyn Dibley for an order that the limitation period for the cause of action pleaded by her in proceedings brought by her against the defendant Sydney West Area Health Service be extended up until 31 March 2008, when the plaintiff’s statement of claim was filed.

2 The evidence on the application consisted of an affidavit by the plaintiff, an affidavit by the plaintiff’s solicitor and an affidavit by the defendant’s solicitor, oral evidence given by the plaintiff and a letter from the Chief Executive Officer of the defendant to the plaintiff dated 8 January 1998. Annexed to the plaintiff’s affidavit was a copy of a report dated 27 February 2008 by Dr William Molloy, a specialist gynaecologist and obstetrician. Much of the evidence including many of the annexures to the defendant’s solicitor’s affidavit would appear to have only marginal relevance to the application and were not referred to by counsel for either party in their submissions.

Factual background

3 On 21 July 1997 the plaintiff gave birth to a daughter, who was named Kaleisha, at Westmead Hospital, which was subject to the control of the defendant.

4 The plaintiff, who had previously lived in Albury and had moved to Sydney, attended the Hospital’s antenatal clinic each week from 10 June 1997.

5 An ultrasound performed on the plaintiff revealed that the baby the plaintiff was expecting was large. The plaintiff was concerned about the prospect of delivering a large baby, as both her mother and her sister had given birth to large babies and had struggled to deliver them vaginally, ultimately requiring caesarean sections. The plaintiff expressed her concern to Hospital staff and asked about the possibility of having a caesarean section rather than attempting a vaginal delivery.

6 On 9 July 1997 the plaintiff was told at the Hospital’s antenatal clinic by a doctor, who was not a senior specialist obstetrician, that, if the plaintiff did not go into spontaneous labour in the next few days, the doctor would arrange for labour to be induced.

7 The estimated due date for the birth of the baby of 13 July 1997 passed, without the plaintiff having given birth.

8 On 15 July 1997, on her last visit to the antenatal clinic, the plaintiff was informed that a decision had been made to wait a few more days before inducing labour.

9 The plaintiff was admitted to the Hospital on the morning of 21 July 1997 and labour was induced. The plaintiff’s labour was long and difficult. During her labour the plaintiff was cared for by midwives and was seen on about three occasions by the obstetric registrars of the Hospital who were on duty.

10 At 11:34 pm on 21 July 1997 the plaintiff gave birth by vaginal delivery to Kaleisha. Kaleisha was a large baby weighing 4.185 kgs (9 pounds 4 ounces) at birth. In the course of the labour the plaintiff suffered a second degree tear of the perineum which required suturing and a separation of the symphysis pubic, which is the fibrocartilaginous union of the pubic bones of the pelvis.

11 The plaintiff remained in the Hospital until 29 July 1997. While she was still in the hospital she complained about the treatment she had received in the hospital.

12 The plaintiff was discharged from the Hospital on 29 July 1997. When she was discharged she needed crutches to mobilise. The plaintiff suffered pain in her pelvis for about four months after the birth but then the pain resolved.

13 The plaintiff was critical of the treatment she had received at the Hospital. At some time in late 1997 she wrote an undated letter to the Hospital in which made a number of complaints about the treatment she had received at the Hospital. The Chief Executive Officer of the Hospital replied in the letter dated 8 January 1998.

14 The plaintiff gave evidence in her affidavit and in her oral evidence at the hearing that, after the period of about four months after the birth, she made a full recovery and was pain-free for a number of years.

15 In par 32 of her affidavit the plaintiff said:-

“In about late August 2005, I was getting out of my car when I felt a twinge in the pelvic region. A couple of weeks later I was walking up a flight of stairs and stumbled. I immediately experienced a severe pain in the pelvic region. I recalled that the pain was identical to that which I had experienced in hospital after Kaleisha’s delivery.”

16 On 10 September 2005 the plaintiff consulted a general practitioner Dr Loxley, who referred the plaintiff to an orthopaedic surgeon Dr Anthony Leong. The plaintiff was seen by Dr Leong on or about 14 September 2005. Dr Leong expressed the opinion that the pelvic pain the plaintiff had recently suffered was probably related to the difficult delivery of Kaleisha.

17 The plaintiff was referred to Dr Ian Woodgate, another orthopaedic surgeon. In November 2005 Dr Woodgate advised the plaintiff that “the pain is more than likely caused by the fact that you have an unstable pelvis as a result of the delivery”.

18 Over a period of approximately three years the plaintiff underwent a number of medical procedures, including diagnostic procedures, injections, manipulation and the administration of medication and two operations in which the sacroiliac joints on both sides of her body were fused.

19 In October 2005 the plaintiff first instructed solicitors to investigate a possible claim by her against the hospital for her pelvic injury. Over a period of some months there was little communication from the solicitors and I infer that their instructions were withdrawn. In about December 2006 the plaintiff instructed another firm of solicitors to investigate whether she might have a claim against the Hospital. The plaintiff heard nothing further from these solicitors.

20 In about December 2007 the plaintiff instructed another firm of solicitors. These solicitors obtained the report from Dr Molloy of 27 February 2008. It will be necessary later in this judgment to refer to parts of Dr Molloy’s report.

21 After Dr Molloy’s report had been received the present proceedings were commenced by the filing of the statement of claim on 31 March 2008. In the statement of claim it was alleged that the plaintiff had suffered injuries caused by the negligence of the defendant its servants and agents. Particulars of the negligence alleged were set out in par 18 of the statement of claim. A copy of Dr Molloy’s report was filed with the statement of claim. An amended statement of claim, which differed only slightly from the original statement of claim, was filed on 9 September 2008.

22 A defence was filed on behalf of the Hospital on 23 December 2008. Apart from other defences, the defendant asserted in par 16 of the defence that the plaintiff’s action had been commenced more than three years after the date on which the cause of action accrued and pursuant to s 18A(2) of the Limitation Act the plaintiff was barred from bringing or maintaining an action against the defendant.

23 A reply was filed on behalf of the plaintiff in which it was asserted that the plaintiff’s cause of action had not accrued until September 2005 when she first suffered symptoms of pelvic instability.

24 The present application was brought on 2 June 2009.

Whether an extension of the limitation period is necessary

25 It was common ground at the hearing before me that the relevant limitation period was the period provided by s 18A of the Limitation Act under which an action on a cause of action to which the section applies is not maintainable, if brought after the expiration of a period of three years running from the date on which the cause of action first accrued.

26 In the plaintiff’s notice of motion the only substantive order sought was an order that the limitation period be extended up until 31 March 2008. However, as I have already noted, it was alleged in the reply filed on behalf of the plaintiff that the cause of action on which she was suing did not accrue until September (or perhaps August) 2005, when, it was alleged, she had first suffered symptoms of pelvic instability, that is less than three years before the proceedings were commenced.

27 On the first day of the hearing before me counsel for the plaintiff stated that he would be making two principal submissions, firstly that the proceedings had been commenced before the expiration of the limitation period and hence no extension of the limitation period was required and, alternatively, if the proceedings had not been commenced before the expiration of the limitation period, an extension of the limitation period should be granted.

28 In support of the first principal submission it was submitted that I should not follow the decision of the House of Lords in Cartledge v E Jopling & Sons Limited [1963] 1 All ER 341, in which it was held by Lord Reid that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible and by Lord Evershed that a cause of action accrues when real damage, as distinct from purely minimal damage, is suffered.

29 It was submitted by counsel for the plaintiff that I should hold that actionable damage such that a limitation period for a cause of action will commence running does not occur, unless and until damage is sustained beyond what can be characterised as merely more than negligible or more than minimal damage. Alternatively, it was submitted that, if the tests in Cartledge were applied, I should find that the injury or damage suffered by the plaintiff before August 2005 was merely negligible or minimal.

30 Counsel for the plaintiff referred to Footner v Broken Hill Associated Smelters Pty Limited (1983) 33 SASR 58 (South Australian Supreme Court Jacobs J); Wardley Australia Limited v Western Australia (1992) 175 CLR 514; Nixon v Philip Morris (Australia) Limited (1999) 165 ALR 515 (Federal Court of Australia Wilcox J).

31 A difficulty which would appear to be in the way of counsel for the plaintiff’s submissions is that the plaintiff in both her affidavit and her oral evidence said that in 1997 she had sustained a second degree tear to the perineum which had required suturing and a separation of her symphysis pubis, that she had for some time been unable to walk without the aid of crutches and that she had suffered four months of serious pain. Such injuries and damage might be thought to be more than merely negligible or minimal and much more than merely negligible or minimal.

32 Counsel for the plaintiff submitted that the injuries the plaintiff had suffered in 1997 were merely normal incidents of vaginal childbirth and “nothing out of the ordinary” for a vaginal birth.

33 On the second day of the hearing of the application I drew counsel for the plaintiff’s attention to two matters, namely:-

1. There was no evidence before me to support the assertion counsel had made from the bar table that the injuries the plaintiff had suffered in 1997 were merely normal incidents of vaginal childbirth and I would be inclined to doubt whether they could be regarded as merely normal incidents of vaginal childbirth

2. A paragraph on p 533 in the joint judgment of Mason CJ, Dawson J, Gaudron J and McHugh J in Wardley, a case relied on by counsel for the plaintiff, even though it was concerned with a claim for damages for financial loss and not a claim for damages for personal injury, in which it was said:-

“We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question . ”

34 After I had drawn these matters to counsel for the plaintiff’s attention and after a subsequent short adjournment, counsel for the plaintiff informed me that his instructions were that, while the plaintiff did not resile from the contention that the cause of action did not accrue until August or September 2005, it should be submitted that I should not make any determination on that contention and should simply deal with the application for an extension of time on the basis, assumed but not conceded, that the cause of action had accrued in 1997 and that the plaintiff’s proceedings had been commenced after the limitation period had expired. Counsel for the defendant was agreeable to my adopting this course and I decided to adopt it.

Whether the limitation period should be extended

35 As I have already noted, the relevant limitation period is the period set by s 18A of the Limitation Act of three years running from the date on which the cause of action first accrued to the plaintiff. On the basis on which I am now considering the application for an extension of the limitation period, the cause of action first accrued to the plaintiff on 21 July 1997 and the limitation period would have expired on 21 July 2000.

36 Counsel were in agreement that the application for an extension was governed by s 60G and 60I of the Limitation Act.

37 Section 60G(2) provides:-

“If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

38 Section 60I(1) provides:-

“A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).”

39 The only part of s 60I(1)(a) on which counsel for the plaintiff sought to rely was (iii). It was submitted that the plaintiff was unaware of the connection between the personal injury suffered by her and omissions of the defendant at or at any time before the expiration of the relevant limitation period.

40 With regard to the interpretation of s 60I(1)(a)(iii) both counsel referred the court to the decision of the High Court in Dedousis v The Water Board (1993-1994) 181 CLR 171 and the decision of the Court of Appeal in Drayton Coal Pty Ltd v Drain (1995) NSWCA 131.

41 In Dedousis the plaintiff had brought an action for damages against his employer, alleging that the employer had failed to provide him with a safe system of work. The plaintiff was aware that the cause of his hearing difficulties had been the noisy conditions in which he had been required to work.

42 At pp 181-2 the High Court said:-

“It is true that s 60 I (1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was “unaware of the connection between the personal injury and the defendant's act or omission” within the meaning of s 60 I (1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions.

The plaintiff asserts in his affidavit of 15 April 1992 that he was not aware until he spoke to his solicitors in May 1991 that the Water Board could have protected his hearing by providing him with proper hearing protection, by testing his hearing regularly, and by taking steps to reduce the noise levels of the machinery he was operating.”

43 Dedousis was explained and applied by the New South Wales Court of Appeal in Drayton Coal Pty Ltd v Drain. The leading judgment in Drayton Coal was given by Gleeson CJ, with whom the other members of the Court agreed.

44 In his judgment in Drayton Coal Gleeson CJ summarised some of the facts of the case as follows:-

“During the late 1980's the respondent was employed by the appellant as a storeman. His employment required him to work near noisy machinery. The excessive noise caused considerable discomfort for the respondent and other workers, and they requested the installation of sound dampening equipment in their workplace. Those requests were not complied with.

By 1988 the respondent knew that he was suffering from a degree of deafness associated with his working conditions. He knew that he was working in an area where he was exposed to excessive noise, and that his employer had taken no steps to protect him by installing sound proofing or other noise dampening equipment. That was the extent of his relevant knowledge before he consulted a solicitor in 1992.

When the respondent consulted a solicitor he was informed, for the first time, that there was an Australian Standard, which established a Hearing Conservation Code, and which, in its application to his case, set out a number of requirements which, if complied with, would have protected his hearing. According to the case the respondent will seek to make out at trial, those requirements included regular hearing testing, the provision to employees of advice and information as to steps that could be taken to protect hearing, and the supply of hearing protection devices. O'Reilly DCJ, of course, did not make any final determination of the merit of the respondent's complaints, but it was apparent from the particulars of negligence, the evidence, and the arguments of counsel, that the respondent was setting out to establish a case in negligence going substantially beyond any complaint, of the kind made in the late 1980's, about the failure to install, in the workplace, sound dampening materials.”

45 Later in his judgment Gleeson CJ said that Dedousis had established inter alia the following propositions:-

“The requirement, in s 60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiffs personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s 60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference).
S 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s 60I(1).

The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, in a case such as the present (as in Dedousis ) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time).”

46 Later still in the judgment Gleeson CJ said:-

“In the resolution of a problem of the kind that arose in Dedousis , and that arises in the present case, it may be necessary for a court to consider questions of degree. In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's injury and the defendant's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii).”

47 In the present case the acts or omissions of the defendant alleged by the plaintiff and sought to be relied on by her are set out in par 18 of the statement of claim. Paragraph 18 is in the following terms:-

“ PARTICULARS OF NEGLIGENCE
(a) Failure to have any or sufficient regard to the plaintiff’s family history of “large babies”;
(b) Failure to have the plaintiff attended by a senior specialist obstetrician on or about 13 July 1997 at which time the plaintiff’s pregnancy was full term and her infant had an unengaged head;
(c) Commencing induction of labour using Prostin Gel when the infant’s head was not engaged;
(d) Commencing induction using Prostin Gel in circumstances in which the use of the product was contraindicated according to the published product literature in relation to the drug;
(e) Failure to refer the plaintiff for x-ray pelvimetry and/or CT scan following the plaintiff’s antenatal consultation on 1 July 1997 at 38 weeks gestation;
(f) Failure to deliver the plaintiff’s infant by caesarean section;
(g) Failure to offer the plaintiff caesarean section delivery;
(h) Failure to induce the delivery on or about 13 July 1997 in circumstances where the defendant knew that the infant was large and that the plaintiff’s pregnancy was full term;
(i) Failure to implement an alternative method of delivery when the plaintiff had not delivered after 1 hour in second stage labour.”

48 Of the particulars alleged in par 18 I was informed at the hearing that particulars (c) and (d) had been abandoned. As to all of particulars (a), (f), (g) and (i), it was conceded by counsel for the plaintiff that the plaintiff was aware, that is not unaware, of the alleged omissions by the defendant and of the connection between her injuries and the alleged omissions by the defendant, at or soon after the delivery of the baby on 21 July 1997.

49 The particulars of negligence pleaded in par 18 of the statement of claim which were relied on by counsel for the plaintiff were particulars (b), (e) and (h) and especially particular (b).

50 Particular (b) was based on a number of parts of Dr Molloy’s report, to some of which I will refer.

51 At p 5 of his report (response 1(a)(ii)) Dr Molloy said:-

“When the patient was attending the antenatal clinic I believe that she should have been seen by a senior specialist obstetrician when she was at term with an unengaged head. The head was certainly high and unengaged when she came into hospital for induction of labour.”

52 At p 8 of his report (response 6(b)) Dr Molloy said:-

“It was necessary at term, with a primigravida with a high unengaged head, that the patient be seen by a senior specialist and I have outlined this on a number of occasions in this report to you.”

53 At p 9 of his report (response 7(a)) Dr Molloy said:-

“I believe that the patient should have, as I have stated on numerous occasions, been assessed by a senior specialist and induced at term which was 13 July 1997 at the latest or an elective Caesarean section been done.”

54 At p 10 of his report (response 10(c)) Dr Molloy said:-

“Careful assessment by a senior specialist, as I have stated previously, before she was induced at term and subsequently during labour, would have avoided all of the subsequent problems this patient has had.”

55 Particular (e) was based on the part of Dr Molloy’s report at p 8 (response 4(b)) where Dr Molloy said:-

“If an x-ray pelvimetry had been done, or even a CT scan of her pelvis at the time, it would certainly have shown whether there was a relative disproportion, in other words where the patient has a normal pelvis and a big baby.”

The time referred to in the response was the time of the antenatal consultation at 38 weeks gestation.

56 Particular (h) was based on the parts of Dr Molloy’s report at pp 9 and 10 which I have already quoted.

57 It was submitted on behalf of the plaintiff that the plaintiff had not become aware of each of the omissions alleged in particulars (b), (e) and (h) of par 18 of the statement of claim or at least had not become aware of the connection between her injuries and the omission, until Dr Molloy’s report was obtained in February 2008.

58 It was submitted on behalf of the defendant that the plaintiff was aware, while she was still in hospital following the delivery of the baby, of the omissions by the Hospital to provide a delivery by caesarean section or to induce an earlier vaginal delivery and of the connection between those omissions and her injuries, that these were the material omissions sought to be relied on by the plaintiff and that the other particulars in par 18 of the statement of claim were merely a restatement of these material particulars. It was also submitted that particulars (b) and (e) were not causative of any injury to the plaintiff.

59 As to particular (b) I am satisfied that, even if the plaintiff was aware before Dr Molloy’s report was obtained of the omission by the defendant to have her attended by a senior specialist obstetrician on or about 13 July 1997, she was unaware until Dr Molloy’s report was obtained of the connection between that omission and her injuries. As to particular (e), I am satisfied that the plaintiff was unaware of the omission by the defendant and of the connection that omission and her injuries. I am not, however, satisfied that it was not until Dr Molloy’s report was obtained that the plaintiff became aware of the omission on the part of the Hospital alleged in particular (h) or of the connection between that omission and the plaintiff’s injuries. The plaintiff was clearly aware on or about 13 July 1997 that the baby was large, that her pregnancy was full term and that she had not been induced and the possibility of her labour being induced had been discussed with her on 9 July 1997.

60 The kind of situation has accordingly arisen in the present case which was discussed by Gleeson CJ in Drayton, where before and at the relevant time the plaintiff was aware of some omissions on the part of the defendant and of the connection between those omissions and the plaintiff’s injuries but was not aware of other omissions or of the connection between those omissions and her injuries. It would not be sufficient, in order for the plaintiff to succeed in the application, that the omissions as to which she was unaware were “word processor” particulars, either inapplicable or of only marginal relevance. On the other hand, it would be sufficient, in order for the plaintiff to succeed, that omissions as to which the plaintiff was unaware were material omissions constituting a substantial ground on which reliance would be placed by the plaintiff.

61 In my opinion, particular (b) should be regarded as a material omission constituting a substantial ground on which reliance would be placed by the plaintiff at any trial. It is an important part of the case the plaintiff wishes to bring that she was not seen by a senior specialist obstetrician when she was at term with a baby with an unengaged head. That omission was causative of her injuries, because it is clear from Dr Molloy’s report that he is of the opinion that, if the plaintiff had been assessed by a senior specialist obstetrician when she was at term with a baby with an unengaged head, the specialist would have advised that labour be induced or a caesarean section performed and such a course “would have avoided all the subsequent problems this patient has had”. The importance of particular (b) is demonstrated by the number of times Dr Molloy expresses substantially the same opinion in his report.

62 I also consider that particular (e) should be regarded as a material omission. If one of the procedures referred to in the particular had been performed when the plaintiff was at 38 weeks gestation, it would have revealed the disproportion between the size of the baby and the size of the plaintiff’s pelvis and would likely have led to an earlier induction or a caesarean section.

63 I conclude that the plaintiff has established within s 60I(1)(a)(iii) that the plaintiff was unaware at or before the expiration of the limitation period of the connection between her personal injuries and omissions on the part of the defendant which she alleges were negligent.

64 Counsel for the defendant made a submission based on s 60I(1)(b) of the Limitation Act. Consistently with the conclusions I have already reached the plaintiff’s application was made within three years of the plaintiff becoming actually aware of all three matters listed in pars (a)(i)-(iii) of s 60I(1). Nor do I consider that the plaintiff ought to have become aware of the matter listed in par (a)(iii) of s 60I(1) more than three years before the application for an extension of time was made. In October 2005 the plaintiff instructed solicitors but these solicitors failed to communicate with her and did obtain any report by an expert.

65 It is still necessary for me to decide whether pursuant to s 60G(2) it is just and reasonable to extend the limitation period. However, counsel for the Hospital informed the Court that he did not wish to make any submission in opposition to my finding that it would be just and reasonable to extend the limitation period. As submitted by counsel for the plaintiff, it was not suggested that the defendant would suffer any relevant actual prejudice, if the limitation period was extended. An important consideration is that the plaintiff complained about her treatment by the Hospital both before she was discharged from the Hospital and in her later letter to the Hospital. In 1997 the Hospital conducted its own timely investigation of its treatment of the plaintiff and the Hospital replied in detail to the plaintiff’s complaints in its letter of 8 January 1998.

66 I make the order sought in the notice of motion that the limitation period applicable to the cause of action pleaded in the statement of claim be extended up until 31 March 2008.

67 Although I have held that the plaintiff’s application that the limitation period be extended should succeed, the success of the plaintiff’s application does not necessarily determine what order I should make concerning the costs of the application.

68 Counsel for the plaintiff submitted that, if I determined the application for an extension in favour of the plaintiff, I should order the defendant to pay the plaintiff’s costs of the application. Counsel referred to the decision of Adams J in Williams v Commonwealth of Australia [2007] NSWSC 1342.

69 Counsel for the defendant submitted that, even if I determined the application for an extension in favour of the plaintiff, I should order the plaintiff to pay the defendant’s costs of the application. Counsel referred to the decisions of the Court of Appeal in Holt v Wynter (2000) 49 NSWLR 128 and Commonwealth v Lewis [2007] NSWCA 127, both of which were decided before Williams.

70 In Holt v Wynter Sheller JA, with whose judgment two other members of a five judge Court of Appeal agreed, said at 147 (121):-

“In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable.”

71 His Honour proposed orders, which became the orders of the Court, that the appeal against the decision of the District Court judge of first instance dismissing an application for leave to commence out of time proceedings for damages for injuries suffered in a motor vehicle accident, should be allowed and the appellant be granted leave to commence proceedings out of time but that the appellant should pay the respondent’s costs of the application at first instance, such order not to be enforced prior to final judgment in the action, without the leave of the District Court.

72 In Commonwealth v Lewis the Court of Appeal dismissed an appeal against the decision of the primary judge granting an extension of a limitation period pursuant to s 60G of the Limitation Act but allowing an appeal against the decision of the primary judge to reserve the costs of the application. A submission was made on behalf of the respondent that Pt 52A r 17 of the Supreme Court Rules, which was then in force, did not govern an application for an extension of a limitation period. At par 94 of her judgment Beazley JA, with whose judgment the other members of the Court agreed, said:-

“Accepting this (submission) to be correct, I am of the opinion, in any event, that in the ordinary course, a court would order a successful applicant for an extension of time to pay the costs. In Holt v Wynter , Sheller JA said at [121]:
… ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable.”

73 In par 95 of her judgment her Honour said that the appellant’s conduct had not been unreasonable and that a small “glitch” during the hearing of the matter was not sufficient “to deprive the appellant of the order that would normally flow in an application of this type, namely, that the respondent pay the appellant’s costs”.

74 In Williams Adams J emphasised the part of Sheller JA’s statement in Holt v Wynter in which his Honour referred to a successful applicant “who has allowed him or herself to get out of time” and expressed his personal view that it would not be just to order a plaintiff who is out of time through no fault of his or her own and who is forced to make an application for an extension of time and who succeeds on the application, to pay the defendant’s costs of the application. Adams J proceeded to inquire whether the opposition of the defendant to the application for an extension had been unreasonable and concluded that the opposition to the application had not been reasonable and this conclusion by his Honour was the basis of the order made by his Honour that the defendant pay the plaintiff’s costs of the application.

75 In Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260 Johnson J at [11] referred to Adams J’s judgment in Williams. Johnson J said:-

“With respect, I have difficulty with that part of his Honour’s reasoning concerning a plaintiff allowing himself to get out of time. As I understand the principles considered in Commonwealth of Australia v Lewis , it may be taken that the present plaintiff allowed himself to get out of time given that it was necessary for him to make application under the Limitation Act 1969. I do not see that any inquiry as to fault on the plaintiff’s part would assist on the question of costs .”

76 I do not consider that I should give the words used by Sheller JA in Holt v Wynter, “who has allowed him or herself to get out of time”, the interpretation placed upon those words by Adams J in Williams. I consider that I should apply what I understand to be the principle stated by the Court of Appeal in Holt v Wynter and Commonwealth v Lewis that the normal rule is that the plaintiff pay the costs of an application for an extension of a limitation period, even if the plaintiff’s application has been successful, unless the defendant’s opposition to the application was wholly unreasonable or at least unreasonable.

77 No submission was made to me by counsel for the plaintiff that the defendant’s opposition to the present plaintiff’s application was unreasonable. The plaintiff was clearly aware at or soon after the delivery of her baby that the baby had not been delivered by caesarean section and that the plaintiff’s labour had not been induced before 21 July 1997 and that the plaintiff has suffered injuries as a result of the delivery. Most of the particulars of negligence in the plaintiff’s statement of claim were either abandoned or alleged omissions on the part of the defendant as to which it was conceded by counsel for the plaintiff, or I have held, that the plaintiff was aware of the omission and of the connection between the omission and the plaintiff’s injury. The plaintiff succeeded only on fairly narrow grounds. Counsel for the defendant informed the court that, if I was satisfied that s 60I(1) was satisfied, counsel would not make any submission that it would not be just and reasonable to extend the limitation period.

78 Counsel for the plaintiff did not in written or oral submissions refer to any matter in support of his contention about costs, other than Adams J’s judgment in Williams.

79 I conclude that the defendant’s opposition to the application was not unreasonable and that I should make a costs order that the plaintiff pay the defendant’s costs of the application. However, I consider that I should make the further order which was made in Holt v Wynter that the costs order not be enforced prior to final judgment in the action, without the leave of the court.

80 I make the following orders:-

1. The limitation period applicable to the cause of action pleaded in the statement of claim is extended up until 31 March 2008.

2. The plaintiff is to pay the defendant’s costs of the application but the costs order is not to be enforced prior to final judgment in the action without the leave of the Supreme Court.

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